Providing Context: Whether FRE 106 Applies to Oral Statements

The Rule

The Federal Rules of Evidence authorize an adverse party to request an opposing party introduce any part of a written or recorded statement, which ought in fairness be considered, into evidence. Contained within FRE 106 is the idea that this sort of “explanatory” evidence will allow the party to whom the evidence is offered against the opportunity to qualify, explain, and ultimately put into context, the original piece of introduced evidence.

There is no question that the rule applies to written or recorded statements being offered into evidence. The question that has arisen is whether the Rule applies to oral statements as well.

The Split

Ninth Circuit

In United States v. Liera- Morales, the Court of Appeals for the Ninth Circuit was asked to consider whether the federal district court judge mistakenly excluded exculpatory statements made by the defendant.

The federal government charged Liera-Morales for participating in a human trafficking ring scheme to kidnap a man named Aguilar. While being held in an ICE field office, the defendant made statements to a federal agent. These statements were later introduced at trial. The defendant moved under FRE 106 to have some of the exculpatory statements introduced into evidence. The court denied the motion, and the defendant was convicted.

The Ninth Circuit noted that in the present case, the district court’s decision to exclude the defendant’s statements were not an abuse of discretion because the trial judge carefully considered the government’s proffered statements from the defendant’s post arrest interview and correctly determined that those statements were not misleading or taken out of context.

In affirming the decision of the lower court, the Ninth Circuit cited prior cases within the Circuit, United States v. Ortega and United States v. Hyatt, that held that based on the terms of FRE 106, the rule only applied to written and recorded statements. Despite the fact that the Ninth Circuit did not actually have to decide whether FRE 106 actually applied to oral statements as well, it noted a split of authority on the matter. Specifically, the Ninth Circuit explained that both the Second and Seventh circuits have held that FRE 106 applies to oral statements by virtue of FRE 611(a) which requires the court to make the procedures of examining witnesses and presenting evidence “effective for determining the truth.”

The Second, Seventh, and Tenth Circuits

The facts in United States v. Mussaleen are simple enough.

A federal jury in the Eastern District of New York convicted the defendants for participating in a scheme to smuggle a foreign national into the United States. On appeal, the defendant argued that it was erroneous for the district court to redact parts of his statements. The statements were in fact redacted by the federal prosecutor in order to protect the Sixth Amendment Confrontation Right of his codefendant. In particular, the defendant argued that the redaction distorted his statement, depicting him in a light that failed to convey his limited role, financial arrangements, and lack of parity with the codefendant.

The Second Circuit acknowledged the clear textual reading of FRE 106, but articulated that because of FRE 611’s requirement that federal judges make interrogation and presentation effective for the ascertainment of the truth, by virtue, FRE 106 must also apply to oral testimony.

Similarly, the Seventh Circuit held in United States v. Li that FRE 611(a) requires the rule of completeness to apply to oral statements. Additionally, though not acknowledged by the Ninth Circuit in United States v. Liera-Morales, the Court of Appeals for the Tenth Circuit has also joined the Second and Seventh Circuit in holding that by virtue of the wording in FRE 611, federal judges are obligated to apply oral statements to the 106 rule of completeness.

The Tenth Circuit in United States v. Lopez- Medina actually cited the Seventh Circuit’s decision in Li, and conducted a thorough discussion on the importance of the rule of completeness in acting as a defensive shield for the defendant by filtering misleading information from the jury.

Looking Forward

There is no doubt that FRE 106 is one of the least interesting evidentiary rules. Its limited textual nature, and as of now, lack of interest by the Supreme Court makes it one that many may overlook. However, judging by the fact that as of now, there is an existing circuit split with the weight of majority in favor of including oral testimony within the rule of completeness, the Supreme Court may step in to resolve the split.

This is important for federal litigation practice because of the component of fairness within the 106 rule. The committee notes on FRE 106 highlight this very importance; misleading impression created by taking matters out of context are often difficult to repair when delayed to a point later in the trial. One can think of countless scenarios where the oral testimony of a defendant is wielded against her in a way that is potentially misleading. The very narrow reading articulated by the Ninth Circuit would give no judicial recourse under FRE 106. This is telling given the committee notes on 611 explain that “the ultimate responsibility for the effective working of the adversary system rests with the judge.” Given the fact that oral statements can be just as damning and prejudicial (See FRE 403) but also potentially exculpatory, in not only the criminal, but civil context, clarity and unity on the rule is necessary within the federal courts.